Please advise regarding river rights... - Mountain Buzz

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Old 06-13-2006   #1
thecraw's Avatar
Boulder, Jackson Kayak, Colorado
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Please advise regarding river rights...

OK, so I am going down one of my favorite all time after work creek runs (Mid NSV) the other day and keeping my eye out for wood as we were the first and maybe only folks on it for the three days it ran this year.

I get past the two V's and around a few other corners and BAM there is a HUGE tree, easily three feet in diameter, about 4 inches above the water line across the whole river. It's in a bad spot (which is another story from a safety standpoint as there is little time to eddie out).

Here is the f'd up part. Once we got out to walk around it, we realized that the damn thing was cut down purposely and pointed to fall right across the middle of the river. It was cut down to make a walking bridge over the river which has now made a navigable river unnavigable.

I am fairly up on river rights around here, but this one stumps me (no pun intended) and I am f'n PISSED off that someone did this. Apparently it was a landowner who is a troop leader for cubscouts and wants to get his kids to the other side of the river.

This has to be illegal as hell. Please advise if you know what you are talking about...

"Life is not a journey to the grave with the intention of arriving safely in a pretty and well preserved body. But rather...To skid in broadside, thoroughly used up, totally worn out, and loudly proclaiming... WOW !!!! What a ride!!!!!!"
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Old 06-13-2006   #2
latenightjoneser's Avatar
steamboat, Colorado
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a saw will probably get you further than any legal argument

you might call the attorney general's office. the sheriff isn't going to touch this one.
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Old 06-13-2006   #3
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OK I am going out in a limb here (ha). My suspicion is that this is perfectly legal based on the legal precedent already established in CO. The federal precedent for use of navigable rivers has traditionally been for commerce. That is why we are currently debating the definition of navigable waters in this state. Two examples to look to are fisherman's paradise on the south Platte and the most recent decision regarding the the lake fork of the gunnison. In both cases private land owners own property divided by a navigable section of water. In the case of the south Platte, a river wide strainer was built to prevent downstream access to the river. This is substantially more spiteful then the case you mentioned as fisherman's paradise wont even allow you to walk around their trash rack. As far as I understand on the most recent case on the lake fork the private land owners were able to win their case in the lower court. IF this case goes to a higher court the ruling may be struck down but that really depends in my opinion on the definition of navigable waters in the state of Colorado. So currently we have two cases upholding a landowners right to limit access to "navigable waters of the United States".
P.S. I am not tyring to defend this position as I want to access as many rivers as possible, just trying to point out the current state of affairs.
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Old 06-13-2006   #4
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The issue is probably the navigability of the stream. I am not sure I agree with mrekid, but I don't know those cases (not saying I disagree either). As I understand it, a landowner cannot interfere with the navigability of a navigable stream. The issue is whether the stream is "navigable" under federal law, and it sure sounds to me like this one isn't. So you're dealing with state law. And if what the person did was legal from a property point of view (ie he owns the land or had permission), then it is probably ok.
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Old 06-13-2006   #5
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Eagle County, Colorado
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(I would think that..) The landowner does open himself for liability due to injury or death on his property, especially resulting from a negligent act. One of the loopholes in the US is that you can be liable for injury even to trespassers. Not that I am saying that it is ok to sue someone when you get hurt on their property, but it may be an incentive to the landowners to remove the strainer.

P.S. I'm not a lawyer, so take whatever I say with a small bag of salt...
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Old 06-13-2006   #6
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Cody, Wyoming
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here is a possible "round about" way to address this issue. i don't know the area all that well, but it seems that there is a reasonable level of development around NSV. based on that fact, the stretch of river may have floodplain mapping in place. if that stretch of river does have floodplain mapping, there are generally regulations in place (by either the county or local town/city) that prevent a land owner from altering the floodplain area, especially in the case of decreasing the capacity of the stream channel. this large tree is essentially a structure placed in the floodplain, and if it is close to the water surface it would likely cause water to back up against it in the high flow. this structure could also catch other debris, causing the river channel to change course and flood other properties. even if the stream does not have floodplain mapped, it is still likely that regulations exist that prevent property owners from changing the stream in a way that could adversely impact adjacent property.

if you want to pm me, i can explain how the regs work in the county where i work. i would suggest calling the local town or county government, and ask about their floodplain regs.
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Old 06-13-2006   #7
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i say we go in there and cut that bitch out.
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Old 06-13-2006   #8
Durango, Colorado
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Here is the deal on navigability. A landowner may not obstruct a navigable waterway. Unfortunately, the river must be navigable for title, which means navigable in fact (used for commerce) at the time of statehood. There are no navigable for title waterways in Colorado.

Some states have also created a subsidiary definition of navigability, either judicially or legislatively, which protects public access. Colorado is not one of these states. There is one Colorado Supreme Court case involving recreational river use- Emmert. Here, the plaintiff argued that the Colorado Constituttion gave him the river to float over any waterway in the state. The court rejected this argument. There is still a possibility that the Colorado Supreme Court could find a subsidiary definition of navigability, but it has not happened yet and you should not press the issue unless you are willing to get a good water lawyer and appeal to the state supreme court.

In summary, if the landowner owns the land under the river, you have no right to float over it. If, on the other hand, it is public land, he may not exclude you. The government cannot force him to remove the log if it is on his own land, but he could be liable for negligence if someone is injured or killed by it. Landowners may be held liable for injuring tresspassers. Here, ther best solution might be to inform him that the log is a potential source of liability and offer to cut it out for him.

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Old 06-13-2006   #9
pnw, Colorado
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LOL, nice disclaimer. I could almost hear the quick, slighty muted voice at the beginning or end of the commercial.
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Old 06-13-2006   #10
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I have an even crazier idea! Why don't we talk to the land owner, explain the situation and the danger and see if he is willing to look to alternative ways to build a bridge or stream crossing that wont threaten the lives of all paddlers who come through. Then, if he wont listen to reason go about sickin the authorities on him. Seems to me we don't want to piss off any land owners unnecessary.
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